P S Krishnan
P. S. Krishnan is a Former Secretary with the
Government of India and has been working on issues
of social justice for nearly seven decades.

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 (POA Act) and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act 2015 (POA Amendment Act) constitute a jurisprudential statutory initiative to provide protection from violence for two of the most vulnerable social groups in India: the Dalits/Scheduled Castes (SCs) and Adivasis/Scheduled Tribes (STs). These laws are based on Article 46 of the Constitution, which mandates the State to promote the educational and economic interests of SCs and STs and protect them from social injustice and all forms of exploitation.

The POA Act has rarely been used for the protection of STs. One reason for this is that the nature of atrocities against STs is different from those against SCs. SCs, who are a minority of the population across India - but a majority of agricultural and other labourers - are often isolated from other labourers by the design and working of the Indian caste system and practices of ‘untouchability’. They are typically subjected to attacks by members of land-owning and other dominant castes. Most Adivasi people, on the other hand, live in tribal areas where they often constitute a majority of the population, and are rarely physically attacked. Atrocities on STs are committed typically by misuse of the forest, police and revenue departments by persons from powerful castes, and increasingly corporates, who deprive them of their lands and other resources. On account of their marginalized status, many Adivasi communities have also been slower to utilise the PoA Act, compared to Dalits.

In this context, the formal complaints made by 98 men and women from villages in Raigarh, Chhattisgarh, at the SC and ST Welfare Special Police Station in Raigarh on 14 June 2017 is a landmark. The villagers alleged that they had been forced to sell their lands through threats, intimidation, coercion and misinformation, to agents of TRN Energy, a subsidiary of ACB India Power Ltd., and Mahavir Energy Coal Beneficiation Limited, operating in collusion with local land-registration officials. This is perhaps the first time that such an initiative has been taken by Adivasis in India in substantial numbers.

I understand that the Chhattisgarh police first instituted preliminary enquiries, (misunderstanding/misinterpreting the Supreme Court judgment in Lalita Kumari vs Govt. of U.P. & Others case), and finally refused to register the FIRs, claiming that no cognizable offences were made out.

The prompt registration of an FIR is mandatory under Section 154 of the Code of Criminal Procedure (CrPC) if the information discloses commission of a cognisable offence, and no preliminary enquiry is permissible in such a situation. Therefore, an FIR ought to have been registered straightaway without further delay. The circumstances of Adivasis are such that they cannot be faulted for not having made the complaint as soon as the offence took place. The blame for their not knowing that there is an Act to protect them lies with the successive governments which have kept them in a state of educational deprivation. The reason for the refusal to register FIRs seem to lie elsewhere.

The Gram Sabhas (village assemblies) in the affected villages of Khokhraaoma, Katangdi, Bhengari and Nawapara Tenda had passed resolutions in 2014 and 2015 stating that their lands have been purchased through fraud and coercion. Under Section 3 (i) v of the POA Act, occupying the land of an SC or ST or dispossessing them of their land is punishable with imprisonment for up to five years. Further, the transfer of tribal lands to non-tribals in Chhattisgarh is prohibited under the Chhattisgarh Land Revenue Code 1959. Another protective provision can be found in the Panchayats (Extension to the Scheduled Areas) Act, 1996 (PESA), which requires consultations with Gram Sabhas to be held prior to land acquisition in Scheduled Areas.

The mandates of Article 46 and other ST-related constitutional provisions, legislations and regulations bind both the State and Central Governments. In the case of Scheduled Areas, the Governor of a State has a special and direct responsibility.

Prime Minister Narendra Modi has recently set the right tone by announcing that nobody has the right to dispossess tribals of their lands and mining should be done without any adverse effect on their surface cultivation rights. Under Article 256, the Government of India has the power to give directions to a State to ensure compliance with any law made by Parliament. Further, Article 339 (2) empowers the Union to give directions to a State in respect of the welfare of STs. These vast powers should be used by the Central Government.

The State Government also has its own responsibilities with regard to protecting the rights of Adivasis. These powers should be effectively utilised to see that justice is done. The provisions of the POA Act, the Chhattisgarh Land Revenue Code and the PESA must be implemented. If these instruments are enabled by the state and central governments to succeed, Adivasis will increasingly begin to utilize legal provisions democratically to secure their rights, and cease being attracted to the idea of violent uprisings.

The example of Canada’s Indigenous peoples, who make up about 4.3% of the population in that country, is worth noting. These communities, like indigenous communities all over the world, have also suffered exploitation, deprivation and abuse. But they have learnt to increasingly resort to courts, alliances with environment groups and targeted protests against mining companies to secure their rights. This has helped them secure many victories, including an unqualified apology by Canada’s then Prime Minister Stephen Harper in the House of Commons on June 11, 2008. In September this year, Prime Minister Justin Trudeau admitted to the UN that his country had not done enough to help Indigenous peoples. Much more needs to be done in Canada, including ensuring that the free, prior and informed consent of indigenous communities is sought in advance of mining on their land. (For, as in India, in Canada too mineral wealth is concentrated in tribal areas.) But indigenous peoples in Canada have been able to get their voice heard on issues including job creation, sustainability in projects, etc.

The proportion of indigenous people in India is about double that of Canada. In Chhattisgarh, the indigenous population is 30.6%. Communities here can be as, or even more, effective if they are able to systematically utilise the powerful legislations already existing in India.

It must be an urgent task for the central and state governments to enforce the laws protecting land-related and other rights of Adivasis, as they are constitutionally bound to do. In the Raigarh case, by ensuring that quick action is taken, tribal land rights are restored and compensation for past losses given, the Government will be taking a practical step towards fulfilling its constitutional mandate of social justice

The media, which appears to have not taken too much notice of this significant development, must also disseminate and build up support for this initiative. Local organisations like Adivasi Dalit Mazdoor Kisan Sangarsh, Chhattisgarh Bachao Andolan, Sarva Adivasi Samaj and Amnesty International India who have supported this pioneering Adivasi initiative deserve appreciation and encouragement.

It will be useful for local and national organisations to consider this route of helping indigenous Adivasi communities to learn about constitutional provisions, laws and schemes, and work with them to secure their rights and entitlements through peaceful and effective mobilisation of Adivasis and their supporters.

Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect the official policy or position of Amnesty International India.